Baggs v University of Sydney Union

Judgment 1HER HONOUR: On 8 October 2012 orders were made under r 28.2 of the Uniform Civil Procedure Rules 2005 to permit resolution as a separate question whether the proceedings commenced by the plaintiff on 28 April 2011 against the University of Sydney Union (the Union) are maintainable under relevant provisions of the Limitation Act 1969. 2The plaintiff and her current solicitor, Mr Matthew Berenger, filed affidavits to which various documents were annexed. They were both cross-examined. The defendant relied upon affidavits of Mr Patrick Riordan, solicitor, and Ms Rachael Hughes, an employee of the University, importantly, as will become obvious, annexing various photographs of the exterior and interior of the Wentworth Building located within the grounds of the University of Sydney (the University) where the words "University of Sydney Union, Wentworth Building" are prominently displayed, including a photograph of the Tenants Directory.

Relevant facts 3On 21 May 2003 the plaintiff, who was at that time employed by the University as a clinical psychologist, fell down a flight of stairs in the Wentworth Building during a fire drill. She was in the building for a scheduled medical appointment. She suffered extensive injuries. 4On 26 May 2003 she lodged a workers compensation claim against the University as her employer. She has been in receipt of benefits under the workers compensation legislation since that time. 5Critically, so far as the current proceedings are concerned, the pro forma workers compensation claim form issued by the University's insurer makes provision for a claimant to offer an opinion as to the reason for the accident and the person or persons thought to be responsible, as to which the plaintiff provided the following information: The fire exit was not adequately maintained. The false alarm in combination with lack of lighting + debris on stairs meant I could not see to exit safely. I believe the University Union was negligent - did not maintain a safe environment. (emphasis added) 6The plaintiff did not obtain any legal advice as to any action she may have had for damages against the "University Union" (or any other party) as the entity at fault before submitting the claim for workers compensation against the University as her employer. 7On 3 June 2003 the plaintiff prepared a further document entitled "Occupational Injury, Illness and Incident Report" (the Report). This was a pro forma document apparently completed as part of the University's risk management processes when an injury is sustained on University grounds. There is no reference in that document to the Union as the party at fault. 8The Report (as tendered) also includes handwritten comments or notations apparently by the person who dealt with the incident on behalf of the University, including the fact that the "Wentworth Facilities Manager", Alan Ferguson, was spoken to on 12 June 2003. Some additional notes were also attached to the document which appear to have been written by the same person where Mr Ferguson's telephone numbers are noted. 9In September 2003 the plaintiff consulted solicitors at Steve Masselos & Co, for advice generally as to her rights as an injured person. She gave evidence that included receiving advice as to the identity of the party at fault in failing to maintain the fire stairs in a safe condition. 10In a comprehensive letter of advice dated 23 September 2003, the plaintiff was informed that a title search had identified the University as the "owner" of the Wentworth Building and, in the view of her solicitor, because the injury occurred in the fire escape forming part of the common property of the building, the care and control of that part of the building vested in the University as the owner. 11It was common ground on the hearing of the motion that the title search identified the University as the registered proprietor of the Wentworth Building and the Commonwealth of Australia and Optus Limited as the only registered lessees. Although it was also common ground that the defendant was in fact the occupier of the Wentworth Building at the relevant time, the precise nature of the legal relationship between the University as registered proprietor and the defendant as occupier was not the subject of evidence. 12The solicitor also advised that since the University was also the plaintiff's employer the Workers Compensation Act 1987 would govern any claim for damages, the success of which would be conditional upon her being assessed at 15 per cent (or greater) of whole person impairment. He also advised as follows: Although premature, it is most unlikely that we would recommend that you pursue a claim for damages against your employer. You will however be entitled to lump sum compensation on the provisions of the Workers Compensation Act once your injuries have stabilised. In any event, before a decision is made as to which course of action should be taken we would obtain appropriate medical reports from your specialist to assess the level of your whole person impairment. We note that you are contemplating surgery some time in the near future and we would recommend that any legal action be delayed for a period of approximately 6 months following surgery. There is a 3 year limitation period dating from the date of the accident, in which proceedings must be filed against your employer should you elect to proceed at Common Law. 13In cross-examination the plaintiff said that she accepted that advice (including that the University as owner of the Wentworth Building had care and control of the fire stairs) and did not instruct her solicitor to pursue a claim for work injury damages. She said that her primary concern at that time (and for some years thereafter) was to maintain a program of post injury rehabilitation to ensure she was able to make a continuing financial contribution to the welfare of her husband and children, despite her injuries. 14On or about 18 November 2003 the plaintiff sought legal advice from Maurice Blackburn Cashman Lawyers (MBC Lawyers). The plaintiff gave evidence that she did not have an accurate recall of her dealings with MBC Lawyers but that she would only have been talking to them about her workers compensation claim. The three items of correspondence tendered in the proceedings referred only to the plaintiff's workers compensation claim. She said that because she was in continuing receipt of benefits under the statutory scheme, and because she was focused on getting well, she was not interested in pursuing any claim for damages at common law and did not receive any specific advice from the solicitors to commence proceedings against anyone for common law damages. The plaintiff said that although she did not intend to pursue any rights she may have had for a work injury damages claim against the University, largely because of her continuing ill health, she nonetheless persisted in the belief (albeit mistaken) that the University was the party responsible for the maintenance of the fire stairs and the party against whom she believed an action in damages would be brought were she to elect to do so. 15On 14 July 2004 MBC Lawyers made arrangements for her to attend a specialist, an appointment she did not keep. On or about 15 July 2005 they ceased to act. 16On 27 February 2007, Leitch Hasson Dent (her current solicitors) confirmed receipt of instructions to act on her behalf in respect of her workers compensation claim. After providing comprehensive advice as to the status of her claim they also advised as follows: ` At this point, it remains to be seen just how significant your injuries turn out to be as to whether or not you may have further rights to sue your [sic] or someone else under Common Law. Should your injuries be severe enough to overcome certain hurdles in the Workers Compensation Act, you may have a claim under the Common Law for negligence against your employer for failing to provide you with a safe system of work or a safe work place. Negligence claims are only available for severe injuries and so in order to claim negligence you must first have a certain level of impairment. We can advise that you must reach a minimum 15% whole person impairment for a negligence claim. There is a strict time limit in which to claim Common Law damages against another party, and you must commence legal proceedings in the appropriate Tribunal within three years of the date of the accident. We shall monitor your claim as the evidence of the circumstances of your accident and the medical evidence unfolds and advise you accordingly as to your entitlements under Workers Compensation Law or Common Law. 17There was no direct evidence from Mr Berenger, either in his affidavit or under cross-examination, as to the entity or entities he considered might be liable at common law. Rather, it appeared to be the agreed position of both counsel in submissions that Mr Berenger laboured under the same misapprehension as the plaintiff's first solicitor that the title search was definitive of the identity of the entity liable at common law for the injuries the plaintiff sustained in the fire stairs. Mr Berenger annexed the original title search to his affidavit. 18Between April 2007 and August 2008 medico-legal reports were obtained by Leitch Hasson Dent which culminated in the settlement of the plaintiff's claim against the University for lump sum compensation under the workers compensation legislation. 19On 14 October 2008, after seeking the advice of counsel, a s 281 notice under the Workplace Injury Management and Workers Compensation Act 1998 was served on the solicitor for the University, initiating a claim for work injury damages. 20By letter dated 3 December 2008, the University advised that it had no control over the lighting of the stairwells in the Wentworth Building; no control over any system to supervise the egress of people from the building upon the sounding of a fire alarm and, accordingly, that the plaintiff's injury was not the result of any negligence or breach of duty on its part as the plaintiff's employer. 21On 10 December 2009, the plaintiff gave instructions to commence proceedings against the University as the registered proprietor of the Wentworth Building on the basis that there were reasonable grounds to believe that it would retain the responsibility for the care, control and management of the fire stairs despite the fact that there were commercial tenants in occupation. 22On 15 January 2010, after receipt of an expert report from a consulting engineer in lighting, the plaintiff commenced proceedings in the District Court against the University as the owner/occupier of the Wentworth Building for work injury damages. (Although the instructing letter was not tendered it was common ground that the plaintiff's solicitors were, even at this time, proceeding on the mistaken assumption that the University was the party at fault.) 23On 12 March 2010 the University filed a defence admitting that it was the owner of the Wentworth Building but denying that it was the occupier of the building at the relevant time. 24By letter dated 31 March 2010 (in response to a request from the plaintiff's solicitor), the solicitor for the University advised that the Union was the occupier of the Wentworth Building. No documents were produced at that time or thereafter to substantiate that assertion. 25On 1 July 2010 the plaintiff served a notice to produce on the University seeking production of documents identifying the occupier of the fire stairs within the Wentworth Building. (No documents were produced.) 26On 16 July 2010 the plaintiff served subpoenae on the University and the Facilities Manager, University of Sydney Union, in an effort to ascertain the legal entity responsible for the fire stairs. 27On 26 July 2010 the only document produced was an "Occupation License" between the University as licensor and the defendant as licensee dated 30 June 2008. No document relating to the occupation of the building at the date of injury was produced. 28On 23 September 2010 the University advised that documents requested by the plaintiff's solicitors (as to the "occupier" of the fire stairs) fell outside the scope of workers compensation legislation. 29The District Court proceedings remained on foot until 12 August 2010 when the claim against the University for work injury damages was struck out (apparently due to the plaintiff's failure to comply with procedural requirements). 30On 28 April 2011 the plaintiff commenced proceedings in the District Court against the defendant for damages in negligence. (Service of the statement of claim was preceded by correspondence complaining that the defendant had failed to answer the subpoenae.) 31On 11 April 2012 the defendant filed a defence. On 4 May 2011, in the course of mediation, the defendant admitted that it was responsible for the fire stairs as occupier of the building. 32On 30 May 2012 the defendant advised in writing that it intended to defend the claim, inter alia, on the basis that it was statute barred. 33On 15 August 2012 the proceedings were transferred to this Court.